The Truth about Physician Participation in Lethal Injection Executions

Abstract

Recent court rulings addressing the constitutionality of states’ lethal injection procedures have taken as a given the faulty notion that doctors cannot and will not participate in executions. As a result, courts have dismissed the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy.

This Article exposes two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt because doctors cannot participate; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument. As the Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participate in executions, though often not in the manner necessary to ensure humane executions.

Lawyers for death row inmates have argued that skilled anesthetic monitoring by trained medical professionals is a necessary component of a constitutional three-drug lethal injection protocol. In response, state officials have strategically emphasized the positions of national medical associations (the ethical guidelines of which are not binding on doctors) and exaggerated their inability to find willing doctors. They have also exploited the activism of the death penalty abolitionist movement, which has long decried physician participation in executions. Abolitionist calls for discipline of medical professionals who participate in executions directly undermine the credibility of death row inmates’ litigation, and feed the perception that death penalty lawyers are talking out of both sides of their mouths.

Lower courts grappling with how to address lethal injection procedures that violate the constitution should know the truth about physician participation. The requirement that trained medical personnel monitor lethal injection executions to ensure that inmates do not suffer excruciating pain should remain on the table as a plausible remedy.